Online communications make use of wiretaps difficult

WASHINGTON — Federal law enforcement and intelligence authorities say they are increasingly struggling to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant-messaging and other online communications that lack the technical means to be intercepted.

A large percentage of wiretap orders to pick up the communications of suspected spies and foreign agents are not being fulfilled, FBI officials said. Law enforcement agents are citing the same challenge in criminal cases: Agents often decline to even seek orders when they know firms lack the means to tap into a suspect's communications in real time.

"It's a significant problem, and it's continuing to get worse," Amy Hess, executive assistant director of the FBI's Science and Technology Branch, said in an interview.

One former U.S. official said that each year hundreds of individualized wiretap orders for foreign intelligence are not being fully executed because of a growing gap between the government's legal authority and its practical ability to capture communications — or what bureau officials have called "going dark."

Officials have expressed alarm for several years about the expansion of online communication services that, unlike traditional landlines and cellphone communications, lack intercept capabilities because they are not required by law to build them in.

But the proliferation of these services and a greater wariness — if not hostility — toward government agencies in the wake of revelations about broad National Security Agency surveillance have become a double-whammy for law enforcement and intelligence agencies, according to FBI officials and others.

Today, at least 4,000 companies in the United States provide some form of communication service, and a "significant portion" are not required by law to make sure their platforms are wiretap ready, Hess said. Among the types of services are photo sharing services, which say they allow users to send photos that are automatically deleted, and peer-to-peer Internet phone calls, for which there are no practical means for interception.

The disclosures by former NSA contractor Edward Snowden have fostered a widespread view that the government is excessively sweeping up all Americans' communications. That impression, FBI officials say, has unfairly extended to the investigations of law enforcement and intelligence agencies that obtain individual warrants to intercept the calls, chats and instant messages of criminals and spies.

Industry officials, security experts and others counter that the government already has many tools available to get the information it needs, that officials brought the predicament on themselves by failing to protect the secrecy around surveillance programs, and that forcing companies to build wiretap solutions will make systems more insecure.

"I do think that more and more they'll see less and less," said Albert Gidari, a partner at Perkins Coie law firm who represents tech firms.

Last year, the Obama administration readied legislation to enhance the government's ability to enforce court-issued wiretap orders. The fallout from the Snowden revelations derailed it.